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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED August 23, 2016

v No. 326936 Saginaw Circuit Court MICHAEL ERIC FLORES, LC No. 14-040327-FC

Defendant-Appellant.

Before: O WENS , P.J., and S AWYER and S HAPIRO , JJ.

P ER C URIAM

. A jury convicted defendant of tw o counts of first-degree crimi nal sexual conduct (CSC I), MCL 750.520b(1)(a), and one count of second-degree criminal sex ual conduct (CSC II), MCL 750.520c(1)(a). The trial court sentenced defendant as a secon d-offense habitual offender, MCL 769.10, to a prison term of 40 to 60 years for each CSC I convi ction, to be served consecutively, to a concurrent prison term of 140 to 270 months for the CSC II conviction. We affirm defendant’s convictions, but vacat e his consecutive sentences f or the CSC I convictions and remand for resentencing on those offenses.

This case arises out of defendant’s sexual assault of his step daughter, TM. The basis for the CSC-I charges were allegati ons that defendant penetrated TM ’s genital opening with his fingers and that he penetrated her mouth with his penis. At th e time of trial, TM was six years old. She testified that on multiple occasions defendant touche d her “front private part” underneath her clothing and that he moved his hand while he did so. She stated that defendant showed her pornographic movies, including movies in which child ren appeared, and said that he touched her vagina while he watched the movies. In addition, T M stated that defendant rubbed his penis against her vagina and buttocks on more than one occa sion and that he also placed his penis in her mouth. TM explained that defendant began touching her when she wa s in preschool, but that after she told her mother about defendant’s actions sh e did not see him again. TM’s mother testified that TM disclo sed the abuse to her and that, b y the end of her disclosure, she was screaming, crying, and shaking. F urther, Michigan State Police Detective Hillary House testified that she observed TM’s interv iew in August 2013, at which time TM was not ready to discuss the matter. However, after TM entered counseling, TM was able to d iscuss the matter in June 2014. Defendant testified on his own beha lf and denied the allegation s made by TM.-2- In a brief filed by appellate counsel, defendant first argues that there was insufficient evidence to sustain the CSC I conviction based on digital penet ration. He contends that TM’s testimony was not sufficient to establish penetration. 1 We disagree.

A person is guilty of CSC I if he or she engages in “sexual pe netration” with another person who is under 13 years of age. MCL 750.520b(1)(a). “Sex ual penetration” is defined in MCL 750.520a(r) as

sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, or any part of a person’s body or of any object into the genital or anal openings of another pers on’s body, but emission of semen i s not required.

TM testified that defendant put his finger on her vagina, but s aid that his finger did not enter the “hole.” However, with the assistance of a visual aid from the prosecutor, TM also testified that defendant’s finger slipped into t he outer folds of her vagina. Her testimony therefore was sufficient to establish penetration as defined in MCL 750.520a( r) and to sustain defendant’s CSC conviction based on digital pene tration of her genital opening.

Defendant next argues that Detective House was improperly allo wed to offer an opinion on the meaning of penetration from a legal perspective. 2 House testified as follows:

Q: Okay. Now, you’ve been doing sexual assault cases, investiga ting sexual assault cases for 20-some years now, and there’s a—I thi nk there’s a perception of what pene tration means in the world. Is it diffe rent when we look at it from a legal perspective?

A: It is.

Q: Okay. Can you explain to the jury what you mean by penetrati on, from a legal perspective?

1 Due process in a criminal case requires a prosecutor to produc e sufficient evidence to warrant the trier of fact in finding that each element of the charged o ffense was proved beyond a reasonable doubt. People v Nowak , 462 Mich 392, 399; 614 NW2d 78 (2000). In reviewing a sufficiency of the evidence question, we view the evidence de n ovo in a light most favorable to the prosecution to determine whether a rational trier of fact c ould conclude that the elements of the offense were proven beyond a reasonable doubt. People v Bulls , 262 Mich App 618, 623; 687 NW2d 159 (2004). We do not interfere with the jury’s role of determining the weight of the evidence or the credibility of witnesses. Id. at 624. A trier of fact may make reasonable inferences from direct or circum stantial evidence in the record

. Id

.

2 Because defendant did not object to the challenged testimony a t trial, this issue is unpreserved and our review is limited to plain error affecting defendant’s substantial rights. People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999).-3- A: Sure. Well, like when [TM] was—when Ms. Barnes—sorry, Janetsky—

Q . I know.

A . –came up to—to the stand here, and they were talking about, like your folds in your vaginal area or lips, whatever you call it, when TM said that he was rubbing this way, anywhere inside the skin is considered penetr ation. So it doesn’t actually have to go inside of her. Simply inside the s kin is considered penetration. So when she described that motion, that he was ru bbing in there, that would be penetration.

Assuming arguendo that this testimony was imprope r, we nevertheless conclude tha t it did not affect defendant’s substa ntial rights. The trial court instructed the jury t hat its task was to find the facts and that it was entitled to accept or reject in full or in part all of the testimony presented. As noted, TM’s testimony described defendant’s acti ons in a way that the jury could conclude that penetration occurr ed, so the jury was not require d to rely on Detective House’s testimony to find the necessary element of penetration. Moreov er, the trial court also instructed the jury that it was to take the law as given by the court, and the court instructed the jury on the element of penetration consistent with the definition in MCL 75 0.520a(r). A jury is presumed to follow its instructions. People v Graves , 458 Mich 476, 486; 581 NW2d 229 (1998). Accordingly, on this record, the court’s instructions were suff icient to protect defendant’s substantial rights. 3

Next, in a pro se brief filed pursuant to Supreme Court Admini strative Order No. 2004-6, Standard 4, defendant argues that the prosecutor committed misc onduct by questioning defendant about TM’s character fo r honesty and by arguing facts not in evidence during closing argument. Defendant also argues that defense counsel was ineff ective for failing to object to the prosecutorial misconduct. 4

3 Because Detective House’s tes timony did not affect defendant’s substantial rights, we also reject defendant’s related claim that defense counsel was ineff ective for failing to object to the testimony. Even if an objection w ould have been appropriate, a n ineffective assistance of counsel claim cannot succeed because defendant was not prejudic ed by the testimony. People v Carbin , 463 Mich 590, 600; 623 NW2d 884 (2001).

4 Because there was no objection to the alle ged instances of pro secutorial misconduct, our review is for plain error affecting defendant’s substantial rights. Carines , 460 Mich at 763-764. “No error requiring reversal will be found if the prejudicial effec t of the prosecutor’s comments could have been cured by a timely instruction.” People v Leshaj , 249 Mich App 417, 419; 641 NW2d 872 (2002). Our review of defenda nt’s ineffective assistance c laim is limited to mistakes apparent on the record. People v Heft , 299 Mich App 69, 80; 829 NW2d 266 (2012).-4- The test of prosecutorial misc onduct is whether the defendant was denied a fair and impartial trial. People v Watson , 245 Mich App 572, 586; 629 NW 2d 411 (2001). During crossexamination, the prosecutor aske d defendant the following quest ions about TM:

Q: And she’s—she’s, all around, just a good kid?

A: She is.

Q: And she’s an honest kid, and she’s a—she’s a thankful kid, an d she’s I mean, she’s just a pleasure. Is that fair?

A: She’s—yes, that is fair.

Q: Okay. And you loved her like she was yours?

A: Yes, I did.

Q: I mean, from the time you knew her, this was the—a daughter t o you; a daughter, not a stepdaughter?

A: Yes.

Q: And you’re really the only dad s he ever really knew?

A: Yup.

Q: And you’re the day-to-day person that’s there with her?

A: Exactly.

Q: Okay. And all that time you spent with her, [TM] is—you can’ t help but describe her as just a good, honest little girl?

A: Yes, I do.

It is improper for a prosecutor to ask a defendant to comment o n the credibility of a prosecution witness because credibility determinations are to be made by th e jury and a defendant’s opinion is not probative of credibility. People v Knapp , 244 Mich App 361, 384; 624 NW2d 227 (2001). However, the foregoing exchange reveals that the prosecutor did not directly ask defendant if TM’s allegations against him were true. The questions were dir ected at obtaining defendant’s opinion of TM’s character, given that defendant was particularl y familiar with TM from his status as her stepfather. Accordingly, the prosecutor’s questi oning did not constitute plain error. Furthermore, to the extent that the prosecutor’s questions to d efendant regarding TM’s honesty could be considered improper, a ny prejudicial effect could have been cured by a timely instruction to the effect that credibility was a question for t he jury. People v Leshaj , 249 Mich App 417, 419; 641 NW2d 872 (2002). Indeed, even without an obj ection, the trial court instructed the jury that it was to decide which witnesses to be lieve, and the court also instructed-5- the jury on various factors to c onsider in evaluating a witness ’s credibility. The trial court’s instructions protected defe ndant’s substantial rights. 5

Next, defendant correctly observes that “[a] prosecutor may no t make a statement of fact to the jury that is not supported by evidence presented at tria l[.]” People v Unger , 278 Mich App 210, 241; 749 NW2d 272 (2008). We agree that the prosecutor ma de a statement that did not comport with the evidence produced at trial when she stated dur ing closing argument that a defense witness testified that TM’s mother visited defendant wi thout the children present after the allegations of abuse. Contrary to the prosecutor’s asserti on, the defense witness actually testified that the children were present during the visits. Ho wever, although the prosecutor did misstate the testimony, nothing in the record indicates that th e prosecutor did so deliberately. Instead, after making the misstatement, the prosecutor correctl y noted that defendant’s mother and brother had testified that the children were in defendant’s presence, but then stated that the outcome of the case did not rest on that point because it did n ot relate to the elements of the charged offenses. Thus, the prosecutor’s position was that any conflict in the evi dence regarding whether defendant had seen the children since the allegations w ere made was not relevant to the outcome, and so we conclude the prosecutor’s isolated misstatem ent on this subject did not affect defendant’s substantial rights. Moreover, any prejudice caused by the prosecutor’s misstatement could have been cured had defenda nt requested an instruction to correct the misstatement. Leshaj , 249 Mich App at 419. Indeed, even without an objection, the trial court protected defendant’s substantial rights by instructing the jury that the lawyers’ statements and argument are not evidence, and that the jury should only accept the thin gs the lawyers say that are supported by the evidence. 6

Next, in his pro se brief, defendant argues that the testimony of TM’s mother, describing TM’s report of defendant’s sexual abuse, was inadmissible hears ay, and that trial counsel was ineffective for failing to object to the testimony. 7 We disagree.

“Hearsay” is defined as “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prov e the truth of the matter asserted.”

5 In addition, defendant’s ineffective assistance of counsel cla im cannot succeed because any error by counsel in failing t o object was not prejudicial. Carbin , 463 Mich at 600.

6 Further, under these circumstan ces, trial counsel’s failure to object or request an instruction does not establish ineffective assistance of counsel. Because the prosecutor did not argue that resolution of this particular s ubject matter was outcome determ inative, and in fact argued just the opposite, and because the trial court ultimately instructed the jury that the lawyers’ arguments are not evidence, there is no r easonable probability that, but for counsel’s failure to object to the prosecution’s misstatement, the outcome of the trial would have been different. Carbin , 463 Mich at 600.

7 Our review of the unpreserved evidentiary issue is limited to plain error affecting defendant’s substantial rights. Carines , 460 Mich at 763-764. Defendant ’s ineffective assistance of c ounsel claim is limited to errors apparent on the record. Heft , 299 Mich App at 80.-6- MRE 801(c). As a general rule, h earsay is inadmissible. MRE 8 02. However, under MRE 803(2), if a statement qualifies as an excited utterance it is inadmissible despite the fact that it is hearsay. MRE 803(2) allows admi ssion of “[a] statement relatin g to a startling event or condition made while the declarant was under the stress of exci tement caused by the event or condition.” A statement is admi ssible under the excited uttera nce exception if it: (1) is related to a startling event, and (2) was made while the declarant was sti ll under the excitement caused by the event. People v Smith , 456 Mich 543, 550; 581 NW2d 654 (1998). “[I]t is the lack of capacity to fabricate, not the lack of time to fabricate, that is the focus of the excited utterance rule. The question is not strictly one of time, but of the pos sibility for conscious refection.” Id

. at 551.

TM’s mother testified that she was giving TM and EM a shower w hen EM started making noises that he indicated h e had heard when defendant was with TM. TM’s mother stated that TM initially did not want to say anything, but then began relating defendant’s actions, and was screaming, crying, and shaking by the time she finished rec ounting defendant’s actions. This testimony supports that TM’s statements to her mother rela ted to a startling event (i.e., defendant’s sexual abuse) and were made while she was under the stress of excitement caused by the event. Accordingly, there was no plain error in admitting the statement. 8

Finally, in the brief filed by appellant counsel, defendant ar gues that the trial court erred by ordering his sentences for t he CSC I convictions to run cons ecutively and that defense counsel was ineffective for failing to challenge the trial cour t’s authority to impose consecutive sentences. Because defense counsel expressly stated at sentenc ing that consecutive sentencing was permitted for the CSC I convi ctions, defense counsel waived any error in imposing consecutive sentences. See People v Carter , 462 Mich 206, 214-215; 612 NW2d 144 (2000). A waiver extinguishes any error, leaving no error to review. Id. at 215. Accordingly, we will only review defendant’s argument th at defense counsel was ineffectiv e for failing to object to the imposition of consecutive sentences.

Defense counsel is presumed to have afforded effective assista nce and defendant bears the burden of proving otherwise. People v Rockey , 237 Mich App 74, 76; 601 NW2d 887 (1999). To establish ineffective assistance of counsel, defend ant must show that counsel’s performance fell below an objective standard of reasonableness under prevailing professional

norms. People v Uphaus (On Remand ), 278 Mich 174, 185; 748 NW2d 899 (2008). Counsel must have made errors so serious that he was not performing as the “counsel” guaranteed by the federal and state constitutions. People v Carbin , 463 Mich 590, 600; 623 NW2d 884 (2001). In addition, defense counsel’s deficient performance must have pre judiced defendant. Id . To demonstrate prejudice, defendant must show a reasonable probabi lity that, but for counsel’s error, the result of the proceeding would have been different. Id

.

8 Moreover, because the admission of the statement was not impro per, defense counsel was not ineffective for failing to object to the testimony. See People v Snider , 239 Mich App 393, 425; 608 NW2d 502 (2000) (holding that defe nse counsel is not requir ed to make a meritless motion).-7- In Michigan “concurrent sente ncing is the norm” and a “consecu tive sentence may be imposed only if specifically authorized by statute.” People v Brown , 220 Mich App 680, 682; 560 NW2d 80 (1996). The CSC I statute provides that the trial court “may order a term of imprisonment imposed under this section to be served consecutiv ely to any term of imprisonment imposed for any other criminal offense arising fro m the same transaction.” MCL 750.520b(3). The term “arising from the same transaction” is n ot defined by statute. People v Ryan , 295 Mich App 388, 402; 819 NW2d 55 (2012). In Ryan , this Court construed this phrase by applying our Supreme Court’s analysis in People v Johnson , 474 Mich 96; 712 NW2d 703 (2006), a case involving similar statutory language. Ryan , 295 Mich App at 403. In Johnson

, the Supreme Court construed the phrase “arising out of the sent encing offense” in MCL 777.41(2)(a), and held:

[W]e have previously defined “ arising out of” to suggest a cau sal connection between two events of a sort that is more than incid ental. We continue to believe that this s ets forth the most reasonable de finition of “arising out of.” Something that “aris[es] out of,” or springs from or results from something else, has a connective relationship, a cause and effe ct relationship, of more than an incidental sort with the event out of which it has arisen. [ Johnson

, 474 Mich at 101.]

In Ryan , this Court held that two acts of CSC I arose from the same tr ansaction, and thereby authorized consecutiv e sentencing under MCL 750.520b(3) , where the two acts “grew out of a continuous time sequence in which [an] act of vaginal intercourse was immediately followed by [an] act of fellatio” and the two particular sexual penetrations “had a connective relationship that was more than incidental.” Ryan , 295 Mich at 403. Thus, Ryan establishes that separate criminal offenses arise from the same transaction with in the meaning of MCL 750.520b(3) where they grow out of a continuous time sequence a nd have a connective relationship that is more than incidental. See People v Brown , 495 Mich 962, 963; 843 NW2d 743 (2014) (citing with approval this Court’s application of th e Johnson analysis in Ryan ).

In this case, the evidence di d not establish any timeline for the assaults with which defendant was charged and convicted. TM did not testify that o ne act followed another without interruption. Instead, she tes tified that the sexual acts occu rred over a period of time and were committed on more than one occasion. Her testimony did not est ablish that the penetrations that formed the basis for defendant’s CSC I convictions “grew out of a continuous time sequence” and had “a connective relationship that was more than incidenta l.” Ryan , 295 Mich at 403. In sum, no evidence supports that defendant’s two CSC I conviction s arose from the same transaction within the meaning of MCL 750.520b(3).

We disagree with the prosecution’ s argument that consecutive s entencing was appropriate because the atmosphere of fear that defendant created with his actions should make the entire period in which defendant assaulted TM “the same transaction.” Under the prosecution’s analysis, two discreet acts occu rring several months apart with no causal connection could be part of the same transaction. This position does not comport w ith the interpretation of that phrase set out in Ryan . Moreover, to allow consecutiv e sentencing under such an anal ysis would render nugatory the requirement in MCL 750.520b(3) that the off enses “arise from the same transaction.”-8- Accordingly, because no evidence establishes that defendant’s CSC I convictions arose out of the same transaction within the meaning of MCL 750.520b( 3), we conclude that defense counsel’s approval of consecutive sentencing fell below an obje ctive standard of reasonableness. Further, defendant was clearly prejudiced by the error because it resulted in the imposition of consecutive sentences not authori zed by law, thereby subjecting defendant to a significantly lengthier period of incarceration. Accordingly, we vacate defe ndant’s consecutive sentences for the CSC I convictions and remand f or resentencing in accordance with MCL 750.520b(3).

We affirm defendant’s convicti ons, but vacate his consecutive sentences for the CSC I convictions and remand for res entencing on those offenses. We do not retain jurisdiction.

/s/ Donald S. Owens /s/ David H. Sawyer /s/ Douglas B. Shapiro